2017 ORS 34.310¹
Purpose of writ
  • who may prosecute

The writ of habeas corpus ad subjiciendum is the writ designated in ORS 34.310 (Purpose of writ) to 34.730 (Forfeiture for refusing copy of order or process), and every other writ of habeas corpus is abolished. Every person imprisoned or otherwise restrained of liberty, within this state, except in the cases specified in ORS 34.330 (Who may not prosecute writ), may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom.

Notes of Decisions

Despite aboli­tion of “civil death,” writ of habeas corpusremains available where no other timely process is available to convicted prisoners for challenging unlawful im­pris­on­­ment, unlawful restraint or other depriva­tion of rights requiring immediate judicial scrutiny. Penrod/Brown v. Cupp, 283 Or 21, 581 P2d 934 (1978)

Where diabetic inmate alleged depriva­tion of necessary diet and medical care, claim, which demonstrated need for immediate judicial interven­tion and to which there was no adequate and timely alternative available, could properly be brought by writ of habeas corpus. Mueller v. Cupp, 45 Or App 495, 608 P2d 1203 (1980)

Writ of habeas corpus was not available to juvenile peti­tioner to challenge her place­ment in Rosemont School on grounds that it violated [former] ORS 419.509 because peti­tioner had adequate alternative remedy through peti­tion to juvenile court. Shrewsbury v. Larson, 52 Or App 81, 627 P2d 910 (1981), Sup Ct review denied

Where plaintiff’s replica­tion alleges sufficient specific facts that condi­tions of confine­ment unnecessarily subject plaintiff to serious health hazards, claim for habeas corpus is supported and plaintiff has right to hearing re­gard­ing constitu­tional rights. Bedell v. Schiedler, 307 Or 562, 770 P2d 909 (1989); Waters v. Bunnell, 138 Or App 377, 909 P2d 214 (1996)

Where plaintiff, penitentiary inmate, alleged he had made several su­i­cide at­tempts, he had requested to see psychiatrist on 15 to 20 occasions, but defendant had failed to provide any treat­ment, immediate judicial scrutiny was re­quired and court erred in dismissing writ of habeas corpus. Fox v. Zenon, 106 Or App 37, 806 P2d 166 (1991)

Where alcoholism and mental illness alleged by plaintiff confined to penitentiary did not create risk of serious and immediate harm, immediate judicial scrutiny was not re­quired, and court did not err when it dismissed writ of habeas corpus. Jones v. Maass, 106 Or App 42, 806 P2d 168 (1991), Sup Ct review denied

Plaintiffs who alleged they were denied psychiatric diagnosis and treat­ment while patients at Oregon State Hospital under jurisdic­tion of Psychiatric Security Review Board were not entitled to habeas corpus relief on ground that they might be released sooner than their original term if they were to receive that diagnosis and treat­ment. Bahrenfus v. Bachik, 106 Or App 46, 806 P2d 170 (1991), Sup Ct review denied

Plaintiff’s claim requesting court to order Depart­ment of Correc­tions to provide plaintiff with annual evalua­tions as entitled by chapter 486, Oregon Laws 1987, was insufficient for habeas corpus relief where plaintiff failed to allege need for immediate judicial scrutiny. Tyrrell v. Maass, 106 Or App 565, 808 P2d 732 (1991), Sup Ct review denied

Where inmate alleged serious medical consequences due to confisca­tion of orthopedic footwear, habeas corpus relief was justified. Voth v. Maass, 120 Or App 574, 852 P2d 969 (1993)

Absent showing that sanc­tion requires immediate judicial scrutiny, habeas corpus is not available to address imposi­tion of fine or extension of parole release date. Pham v. Thompson, 156 Or App 440, 965 P2d 482 (1998), Sup Ct review denied

Where initial parole board order extended incarcera­tion por­tion of indeterminate sen­tence past date prisoner was entitled by statute to parole, issuance of superseding order after date prisoner was entitled to parole did not make prisoner’s challenge to initial order moot. Hamel v. Johnson, 330 Or 180, 998 P2d 661 (2000)

Habeas corpus is permissible means by which defendant charged with mur­der may challenge trial court’s decision to deny release. Rico-Villalobos v. Guisto, 339 Or 197, 118 P3d 246 (2005)

Notes of Decisions

Availability of relief under writ of habeas corpus is not defeated by transfer of custody from one correc­tional facility to an­oth­er while matter is pending. Clemman v. Wright, 109 Or App 325, 819 P2d 327 (1991); McGee v. Johnson, 161 Or App 384, 984 P2d 341 (1999)

Law Review Cita­tions

14 WLJ 55 (1977)

1 Legislative Counsel Committee, CHAPTER 34—Writs, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors034.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 34, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano034.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.